Oklahoma Injury Lawyer Blog

Simple! Just tell the truth. To be more specific, if you don't know the answer, say so. A lot of people feel the need to answer - even if they're not sure. That's where they get into problems.

If you don't understand what the defense attorney is asking, ask the attorney to clarify the question.

I was just reviewing my "Closed Files" list.  Nearly all the cases ended with some type of settlement.  A few of the cases were taken on and after "working the file" were closed after it was determined a favorable result could not be obtained for our client(s). 

One particular file from last month still irks me a little: Our firm spent several thousand dollars just to find out if it was in fact a viable medical malpractice case.  I like to say to my clients with a tough medical malpractice case: "well, after I do my homework, I'll know if you have a winnable case."  Other lawyers call this due diligence.  Remember that just because something went medically wrong, a doctor was not necessarily at fault.  Even if the doctor was at fault though, the plaintiff must prove that the standard of care was breached. 

On this particular case we spent a little over $400 obtaining the medical records (hospitals rightfully charge for copies).  We also paid a doctor about $2500 to review the records and give us her opinion of the case.  Like this client's case, most of our cases are on a contingency fee basis.  We only get paid if we get a favorable settlement or verdict (and can collect) in a case.  The court costs, expert expenses, etc. are deducted out of the settlement/verdict.  

In this case: we couldn't obtain a favorable result so our attorney's fee (how much our firm was paid) was technically -$3000.  The moral of the story: it's better to learn upfront about a case, and spend $3000 on a good doctor/expert, than to spend ten times that (and a few years of work) on a case that only gets the clients hopes up, and walk away with no recovery.

One of the recent changes to our tort system is that, to file a medical malpractice case, an expert affidavit has to be attached to the Petition. The attorney must attest that:

1) Plaintiff has consulted with a qualified expert
2) Plaintiff has obtained a written opinion from the expert and that the expert believes that a reasonable interpretation of the factors supports a finding of professional negligence
3) Based on the consultation with the expert, plaintiff believes the claim is meritorious and based on good cause.

The law goes into effect November 1, 2009.
Here's the full statute: 12 O.S. § 19 . Professional Negligence Action - Expert Opinion Affidavit Requirements - Exemption

This is good news for Oklahoma attorneys:

Court filings from each of the state's 77 counties will be available to the public online for free in the next three years under a plan being pursued by the Oklahoma Supreme Court.
The court has signed a $1 million contract with a Duncan company to prepare electronic court records from 64 counties to merge into one publicly available online system, Chief Justice James Edmondson said Wednesday.
"It's time to get in gear with a 77-county, integrated system," Edmondson said. "So we'll have one system that's state of the art and a uniform case management system for the entire state."
The new system should be operational by summer 2012, if funding is available, he said.

So, if funding is available, this will be really convenient. What I'd really like: allow us to file electronically like we can in federal court.

Currently, filings are available on The Oklahoma Supreme Courts Network Dockets Page. It's really hit or miss if the documents are accessible online though.

Our filing fees may get a little less costly. The Journal Record reports:

Oklahoma City attorney Jerry Fent filed a lawsuit questioning the constitutionality of only three fees: one that goes toward child abuse services administered by the Department of Human Services, an adoption fee with revenue that funds a voluntary registry and a fee that funds the state attorney general's Victim Services Unit.

I was reading through my copy of The Week yesterday afternoon.  There's a brief blurb about Mr. Riches in the "Bad Week For" section:

Johnny Sue-nami,' also known as Jonathan Lee Riches, whom Guinness World Records named as the most litigious man in history for having filed more than 4,000 lawsuits against parties ranging from George W. Bush to Britney Spears and Nostradamus. Riches said Guinness had defamed him and vowed to sue.

According to the Wikipedia article, Mr. Riches is currently incarcerated here in Oklahoma City for wire fraud.

The Week is one of my favorite magazines.  It's a summary of the week's news and editorials.  It should probably be called The Week (In Review) though because the stories are from the previous week.

Debt collectors appear to be using Facebook to get info on the people their pursuing:

 
One Elk Grove mother says she was scammed by a debt collector who claimed to be a college student looking for advice on her town. She accepted him as a 'friend' on her Facebook page even though they had never met.

The attorney in the video is Jonathan Stein.  He's a personal injury lawyer out in Elk Grove, CA.  He's also the author of Litigating MIST Cases.  The MIST Book is a step by step guide to fighting insurance companies in what they've termed "Minor Impact Soft Tissue" (MIST) cases. 

Settlement offers are almost always a part of the litigation process.  Sometimes settlement talks will fall through though.  If this happens, can one party use the opposing party's settlement offer as evidence to show that the party was at fault or did something wrong?

No.  The Oklahoma Evidence Code clearly states that this is inadmissible.  Check out the statute for the exact language: 12 O.S. § 2408.  Note that the rule does not require the exclusion of evidence that would otherwise be discoverable simply because it occurred during settlement negotiations. 

One of the reasons for this rule is that it encourages settlement. 

The Seattle Times ran a story today detailing the Oklahoma Bar Association's response to the recent attacks/proposed changes to our civil justice system.  The proposed changes would limit damages available to Oklahoma personal injury and medical malpractice victims. 

Our OBA president's take on the proposed legislation:

"I call upon the Legislature to produce facts -- not myths or urban legends -- but proof of the necessity of the measures that have been introduced."

"Some of the supporters of this legislation know that Oklahoma does not have a tort crisis."

"Like they say where I'm from: 'That dog don't hunt."

The article also cites a survey of Oklahoma trial judges that found that 90 percent of judges believed there was no litigation crisis requiring legislative changes.  The survey also found that there was no severe problem in Oklahoma with frivolous lawsuits. 

Some Oklahoma injury cases can be lost because basic steps, like going to your doctor shortly after the accident, are not taken.  However, the most important thing an Oklahoma plaintiff can do is tell the truth.  Lying about the facts of your case, or your injuries, can take a solid case to one that is murky at best. 

Honesty throughout all stages of the case is much more important than the lawyer you choose to handle your case.  Honesty is not only limited to once a lawsuit is filed though.  Being truthful in all actions of your case includes the first visit to your doctor (or ER room) after the initial accident.  Tell your doctor everything related to the injury without exaggerating and be sure to include any previous injuries.  Under no circumstances lie to your doctor, the opposing insurance adjuster/attorney, or your own lawyer.  It will come back to bite you.  A jury that views a plaintiff as dishonest has little reason to believe the full extent of the injuries claimed by that party. 

We had a mediation scheduled today at 1:30 p.m. for a wrongful termination case here in Oklahoma City.  Opposing counsel gave me a call late afternoon yesterday to see if we could go ahead and reach a settlement.  We ended up reaching a compromise about 15 minutes ago - that's literally hours before the mediation was to begin.  Props (and a thank you!) to Jake Jones, the mediator we were scheduled with, for not charging us any costs for canceling so late. 

The vast majority of cases settle without going to trial.  Here are some interesting national statistics according to a United States Justice Department study:

• About 97 percent of civil cases are settled or dismissed without a trial
• Plaintiffs won 55 percent of the cases surveyed
• Plaintiffs won less than one-third of medical malpractice trials in 2001

(source: Phoenix Business Journal)

The case that settled today involved a wrongful termination of an employee that was injured at work.  The employer "had to let go" the worker shortly after he was injured at the company.  It is illegal under Oklahoma law (85 O.S. § 5), to fire an employee for initiating, or filing, a worker's compensation claim. 

This week's Journal Record has an article concerning Rep. Schwarz's effort in refiling House Bill 1725.  An identical bill was vetoed last year. 

The proposed bill requires Oklahoma plaintiffs (i.e. personal injury or medical malpractice victims) filing a professional negligence lawsuit to attach to the petition a "certificate of merit" affidavit.  The affidavit is to attest that the lawsuit has been reviewed by a qualified expert and that the case does in fact have merit.  The Oklahoma Supreme Court struck down a similar law in 2006 because it applied solely to medical professionals.  The law was found unconstitutional because it singled out one kind of profession for special treatment.  In addition, the Court "deemed the certificates of merit an unconstitutional barrier to the courts - obtaining such an opinion could cost as much as $12,000 and create other legal problems." [emphasis added].  The article also states an obvious truth:

Some cases are so obvious they don't require the testimony of an expert witness, yet expert testimony would be required under the law the court struck down.

So why does Schwarz find it necessary to refile an identical bill? 

All this does is drive up the cost of litigation and make it harder for Oklahoma plaintiffs to bring a lawsuit.  Any half-brained lawyer won't bring a lawsuit that they think lacks merit - for the simple fact that they will lose time and money. 

This is almost always a non-issue.  With I-35 running through our great state, accidents with out-of-staters do happen.

Example:  Someone from Texas rear-ends you here in Oklahoma City.  So, where can you bring a case against someone that doesn't reside in Oklahoma that caused the car accident?

In Oklahoma, "venue" in car accident cases is in the county where any defendant may be served or the accident (damages) occurred.  This means, that in our example, suit could be brought where the accident/injury occurred or where we can get service on the defendant. 

I just got off the phone with a current client.  It looks like he may be moved into the "former-client" category.  The client is obviously frustrated because he's injured and his having trouble finding work.  He wants me to front him some money to pay his living expenses.  The ethics rules for Oklahoma lawyers are absolutely clear on this issue.  Attorneys can't do this.

Rule 1.8 of the Oklahoma Rules of Professional Conduct ("RPC") prohibits certain transactions which might create a conflict of interest between the lawyer and a client. The relevant portions of RPC 1.8 are as follows:

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

1. The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client;
2. The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
3. The client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

* * *

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

1. a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
2. a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

So, the moral of the story:  If you want me to violate any Oklahoma lawyer ethics rules, don't bother contacting me.  While I will fight for you in court against an insurance adjuster, I will not, under any circumstances, break any of the Oklahoma lawyer ethics rules.   

Generally the first question a personal injury client asks us concerns damages.  Something along the lines of: "what does my recovery and compensation consist of?"  After that, the question is usually, "well, what's next?"

    The General Steps in a Personal Injury Case:

1.    After treatment is complete; make settlement demand on insurance company.
2.    Filing of lawsuit (Petition) if unable to settle.
3.    Service of summons on defendant (private process server or by certified mail).
4.    Defendant has twenty (20) days to file an Answer or Entry of Appearance (may reserve another twenty days to file Answer).
5.    Discovery (fact finding process):
    a.    Interrogatories (thirty days to answer);
    b.    Request for Admissions;
    c.    Request for Production of Documents;
    d.    Depositions (usually after interrogatories and request for production of documents).  Sworn statement before a court reporter.
    e.    Medical examination of Plaintiff by Defendant's doctor;
6.    Motion to Enter (tell judge to set scheduling deadlines).
7.    Mediation (court ordered settlement meeting).
8.    Pretrial conference (meet with judge after ready for trial).
9.    Trial
10.    Appeal
11.    Settlement discussion may occur at any stage.  Over 90% of the cases settle before a trial is conducted.
12.    The trial process, excluding appeal, averages approximately nine (9) months in Oklahoma County from the date of filing the lawsuit to the date of trial.